KUALA LUMPUR, Nov 2 ― Lawyers for Prime Minister Datuk Seri Najib Razak disclosed today that they will advise their client to mount his defamation lawsuit against Wall Street Journal (WSJ) here instead of in the US where the daily is based.
They explained that this was because Najib’s reputation is greater in Malaysia.
“We are inclined to advise him to file it in Malaysia,” Datuk Mohd Hafarizam Harun told reporters when met at the Duta Court Complex here this morning.
The lawyer said the prime minister intends to sue WSJ for its allegedly defamatory words in its online report linking him to the controversies surrounding state-owned 1Malaysia Development Berhad (1MDB) instead of its print version.
Datuk Firoz Hussein Ahmad Jamaluddin, another member of Najib’s legal team, said that a plaintiff always has the choice of where he wants to file his lawsuit.
“If a politician is from Malaysia, why should he have to go and sue in a foreign jurisdiction?
“I think one's reputation is where one lives, rather than suing in a place where one doesn't really live or have that great of a reputation as where one lives,” he told reporters.
“It's all governed by conflict of law rules under private international law, defamation is you sue where your reputation is the greatest, where it's affected the most, you don't sue in a country where it's not affected as much,” Firoz Hussein added.
The lawyers were asked why Najib had not opted to file the defamation suit against WSJ publisher Dow Jones & Co in the US, where there would be no concern of the firm invoking a legal immunity against the enforcement of defamation suit decisions by courts outside the US.
In the same press conference, Hafarizam denied that there was a move to delay the filing of the defamation suit against Dow Jones, saying that he had started sending letters to the publisher within five days after the alleged defamatory articles were published in July.
Hafarizam said he had already made clear that Najib's cause of action is a defamation suit and would need Dow Jones' confirmation on whether they would rely on the US legal immunity, adding later that he cannot “force” them to reply despite the risk of the case stagnating.
“I am waiting for their clear answer, then I am going to decide whether we are going to file ― of course here and definitely not in US.
“It's not about delaying, it's about doing it right for the first time because I don't want the suit suddenly to be knocked off on technicality and the main issue is sidetracked, it is no longer about Wall Street Journal but our inability and inefficiency that the suit is dismissed,” he said.
Firoz Hussein said “the ball is in WSJ's court” as Najib's lawyers are now awaiting confirmation on whether the publisher will invoke the legal immunity under the US law, Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act.
When asked why Najib's lawyers had not chosen to go ahead with the lawsuit as their client's reputation would be worth more than the monetary compensation that has to be enforced, Firoz Hussein said such a court decision would only be considered a “paper judgment”.
“So a judgment without being able to enforce for a sum of damages is of no value, it's just not worth the paper it's written on. Why should a person sue if you know you are only going to get a paper judgment?” he asked.
In response to a comment that others had in the past filed defamation suits in Malaysia against WSJ and won, Firoz Hussein noted that the US SPEECH Act is a recent law brought about by the Obama administration and was not the previous legal position in the US.
Dow Jones had in the past said Najib's lawyers request for clarification over their two July articles were unnecessary, stating that the July 2 news report titled “Malaysia leader’s accounts probed” and the July 6 opinion piece titled “Scandal in Malaysia” spoke for themselves and were based on available facts.
